Stroman v. Ard et al

Filing 39

RULING and ORDER: Granting 33 Motion to Dismiss for Failure to State a Claim; granting 12 Motion to Dismiss for Failure to State a Claim. FURTHER ORDERED that Plaintiff will file within 30 days of this order an amended complaint, if he can do so, with respect to his § 1983 claims against Defendant Ard in his official and individual capacity. IT IS FURTHER ORDERED that, in the event that Plaintiff fails to file an amendment to his complaint within that time, his claims will be dismissed with prejudice. Signed by Judge John W. deGravelles on 11/02/2015. (ELW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
DONNY L. STROMAN
CIVIL ACTION
V.
NO. 14-649-JWD-SCR
JASON ARD, ET AL

RULING AND ORDER
Before the Court is Defendant Jason Ard’s Motion to Dismiss Pursuant to Rule 12(B)(6)
(Doc. 12) and Re-Urged Motion to Dismiss Pursuant to Rule 12(B)(6). (Doc. 33). Plaintiff
opposes the motion. (Doc. 37). The Court has jurisdiction pursuant to 28 U.S.C. § 1331. Oral
argument is not necessary.
For the reasons set forth below, Defendant’s motion is granted. However, Plaintiff is
granted leave to amend his complaint within 30 days of this order. In the event that Plaintiff fails
to file an amendment to his complaint within that time, his claims will be dismissed with
prejudice.
I.

Relevant Factual and Procedural Background
a. Introduction
This case arises out of Defendants Sheriff Jason Ard, Cade Blades, and Anthony

Aguillard’s alleged unlawful actions in violation of the United States Constitution. Donny L.
Stroman (“Plaintiff”), an inmate of the Louisiana Department of Corrections, brought suit
pursuant to 42 U.S.C. § 1983 claiming Defendants failed to provide adequate security and failed
to provide adequate medical treatment. Defendant Sheriff Jason Ard is seeking to dismiss claims
against him pursuant to Rule 12(b)(6).1
1

Defendants Blades and Aguillard are not a party to the motion to dismiss.

b. Procedural Background
Plaintiff filed his original Complaint (Doc. 1), to which Defendants Blades and Aguillard
filed an answer (Doc. 11), and Defendant Ard filed a motion to dismiss (Doc. 12). Subsequently,
Plaintiff filed an unopposed motion to file an amended complaint (Doc. 29), which was granted
(Doc. 31). Plaintiff then filed his Amended Complaint (Doc. 32), to which Defendant Ard filed
the present Re-Urged Motion to Dismiss. (Doc. 33).
As an initial matter, Plaintiff’s Amended Complaint does not reference2 or incorporate
his original Complaint. Therefore, Plaintiff’s Amended Complaint supersedes his original
Complaint.3 King v. Dogan, 31 F.3d 344, 346 (5th Cir.1994) (holding that an amended complaint
supersedes an original complaint “unless the amended complaint specifically refers to and adopts
or incorporates by reference the earlier pleading”).
c. Plaintiff’s Allegations
Plaintiff alleges in his Amended Complaint that “[o]n or about October 10, 2013,” he was
“an inmate of the Department of Corrections of the State of Louisiana placed in the Livingston
Parish Detention Center.” (Doc. 32, p. 2 ¶ III(1)). Plaintiff claims that he was under the direct
supervision of Defendants Blades and Aguillard. (Doc. 32, p. 3 ¶ III(2)). Plaintiff asserts that
Defendants Aguillard and Blades “failed to provide adequate security, leading to [Plaintiff] being
struck in the jaw by another inmate, which caused … serious permanent injury to his jaw.” Id. at
¶ III(4). Plaintiff alleges that Defendants Ard, Blades, and Aguillard “each had a personal

2

Plaintiff’s Amended Complaint does make reference to Defendants Blades and Aguillard previously being named
“Mr. Blades” and “Lt. Aguilar.” (Doc. 32, p. 2). However, Plaintiff does not specifically refer to his original
Complaint.
3
There is a procedural question of whether an amended complaint moots any pending motion to dismiss. Courts
have decided this issue in different ways. See Melson v. Vista World Inc. and Assocs., CIV.A. 12-135, 2012 WL
6002680, at *12 n. 3-4 (E.D. La. Nov. 30, 2012) (aggregating cases). Here, as Defendant Ard re-urged his original
motion to dismiss (Doc. 12) in a new motion (Doc. 33) and specifically addresses the new allegations raised by
Plaintiff’s Amended Complaint in his Memorandum in Support (Doc 33-2), the Court finds his motion is not moot.

2

responsibility to secure adequate and immediate medical care for [Plaintiff] who failed and
refused to provide it.” Id. at ¶ III(5).
Plaintiff asserts that “[o]n October 11, 2013, [Plaintiff] sought medical assistance from
[Blades] and [Aguillard] but was refused.” Id. at ¶ III(6). Plaintiff alleges that “[t]he failure to
provide [Plaintiff] with adequate medical treatment led to further injury and continued pain and
suffering from what turned out to be a broken jaw.”
Further, Plaintiff alleges that “[t]he failure of Sheriff Ard to properly supervise the
facility under his control … subjected [Plaintiff] to cruel and unusual punishment under the
Eighth and Fourteenth Amendments to the United States Constitution.” (Doc. 32, p. 4 ¶ III(8)).
Plaintiff claims “[a]s a result of the actions described above, [Defendant Ard], in his individual
capacity, and while acting under color of law … deprived [Plaintiff] of clearly established and
well-settled constitutional rights.” (Doc. 32, p. 5 ¶ III(13)). Plaintiff asserts that Defendant Ard,
in his individual capacity, is “liable to [Plaintiff] under 42 U.S.C. § 1983 because of his policy,
practice, pattern and custom of failing to provide adequate medical attention to inmates at
Livingston Parish Detention Center, including [Plaintiff]” Id. at ¶ III(14). Plaintiff claims that
this alleged “policy, practice, pattern and custom resulted in deliberate indifference to [Plaintiff’s]
serious and immediate medical needs in violation of the Eighth and Fourteenth Amendments to
the U.S. Constitution and was a driving force behind his suffering, injury and the constitutional
violation.” Id.
d. Present Motion
Defendant Sheriff Jason Ard (“Defendant”) now seeks to dismiss Plaintiff claims against
him pursuant to Rule 12(b)(6). Defendant challenges Plaintiff’s allegations against him arguing
that Plaintiff has failed to adequately state a claim against him because, among other reasons,

3

Plaintiff’s allegations are conclusions of law that are unsupported by facts. (Doc. 33-2, p. 2).
Defendant also raises several arguments related to, but not limited to, vicarious liability and
qualified immunity. Plaintiff counters that he has made multiple factual allegations that are not
conclusory. (Doc. 37, p. 2). The parties’ arguments will be addressed below.
II.

Rule 12(b)(6) Standard
In Thompson v. City of Waco, Texas, 764 F.3d 500 (5th Cir.2014), the Fifth Circuit

recently summarized the Rule 12(b)(6) standard as thus:
We accept all well-pleaded facts as true and view all facts in the light most
favorable to the plaintiff. We need not, however, accept the plaintiff's legal
conclusions as true. To survive dismissal, a plaintiff must plead enough facts to
state a claim to relief that is plausible on its face. A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.
*4 Id. at 502–503 (internal citations and quotations omitted). The court’s duty is “to determine
whether the plaintiff stated a legally cognizable claim that is plausible, not to evaluate the
plaintiff's likelihood of success.” Id. at 503.
III.

Discussion
a. Whether Plaintiff’s Allegations are Conclusory
Defendant argues that Plaintiff’s Amended Complaint “contains, at best, nothing more

than a recitation of the elements of his claim against [Defendant] Ard, and it provides no factual
allegations to support those allegations.” (Doc. 33-2, p. 6). Defendant contends that Plaintiff “has
pled nothing more than labels and conclusions that are not enhanced with any factual
specificity.” Id. Additionally, Defendant claims that “[a]ll statements made in [Plaintiff’s]
Amended complaint regarding Sheriff Ard are conclusions of law that are not entitled to a
presumption of truth.” Id.

4

Plaintiff counters that “[a]nyone reading the second amending complaint would
rhetorically trip over the multiple factual allegations.” (Doc. 37, p. 2). Plaintiff argues that he
“doesn’t have detailed evidence of some allegations. That, of course, is the point of discovery.”
Id. Plaintiff asserts that “has plead specific failure to train, mainly in emergency medical
procedure, and in failing to properly train and provide adequate security so that no inmate is
subject to the vicious act that felled [Plaintiff].” Id. Defendant responds by arguing that the
Supreme Court “has made it very clear that [P]laintiff cannot open the door to discovery by
making conclusory allegations in hopes that he can uncover facts supporting those allegations.”
(Doc. 38, p. 1).
After carefully reviewing the Plaintiff’s Amended Complaint, for the reasons set forth
below, the Court agrees with Defendant that Plaintiff has not pleaded sufficient facts to support
his claims.
b. Vicarious Liability Under § 1983
Defendant Ard argues that he cannot be held vicariously liable under § 1983. (Doc. 33-2,
p. 6-7). Defendant argues that even though “it is unclear whether [P]laintiff is attempting to
plead any vicarious liability claims against Sheriff Ard,” any such claim must be dismissed.
(Doc. 33-2, p. 7). Plaintiff does not directly address this argument in his opposition.
Defendant is correct. “[S]upervisory officials cannot be held liable under section 1983 for
the actions of subordinates ... on any theory of vicarious or respondeat superior liability.”
Jackson v. E. Baton Rouge Par. Prison, CIV.A. 14-45-JJB-RLB, 2014 WL 3193124, at *3 (M.D.
La. July 8, 2014) (citing Estate of Davis ex rel. McCully v. City of N. Richland Hills, 406 F.3d
375, 381 (5th Cir.2005)); see also Bd. of Cty. Com'rs of Bryan Cty. v. Brown, 520 U.S. 397, 403
(1997) (“We have consistently refused to hold municipalities liable under a theory of respondeat

5

superior.”). Thus, Defendant’s motion is granted, and to the extent that Plaintiff intended to
assert a claim of vicarious liability against Defendant Ard, such a claim is dismissed with
prejudice.
c. Claims Against Defendant Ard in his Official Capacity
Plaintiff has alleged claims against Defendant Ard in his official capacity as sheriff of
Livingston Parrish. The Supreme Court outlined in Kentucky v. Graham:
Personal-capacity suits seek to impose personal liability upon a
government official for actions he takes under color of state law.
Official-capacity suits, in contrast, “generally represent only
another way of pleading an action against an entity of which an
officer is an agent.” As long as the government entity receives
notice and an opportunity to respond, an official-capacity suit is, in
all respects other than name, to be treated as a suit against the
entity. It is not a suit against the official personally, for the real
party in interest is the entity. Thus, while an award of damages
against an official in his personal capacity can be executed only
against the official's personal assets, a plaintiff seeking to recover
on a damages judgment in an official-capacity suit must look to the
government entity itself.
473 U.S. 159, 165–66 (1985) (citations omitted).
Further, this Court has previously explained:
“A local government entity may be sued ‘if it is alleged to have
caused a constitutional tort through a policy statement, ordinance,
regulation, or decision officially adopted and promulgated by that
body's officers.’ “ Zarnow v. City of Wichita Falls, 614 F.3d 161,
166 (5th Cir.2010) (quoting City of St. Louis v. Praprotnik, 485
U.S. 112, 121 (1988)) (internal quotation marks omitted). To
impose liability upon Defendant … in his official capacity … the
Plaintiff[] must establish three elements: “a policymaker; an
official policy; and a violation of constitutional rights whose
moving force is the policy or custom.” Id. (quoting Piotrowski v.
City of Houston, 237 F.3d 567, 578 (5th Cir.2001)) (internal
quotation marks omitted).

6

Norton v. Livingston Par. Detention Ctr., CIV.A. 13-437-JJB, 2013 WL 5519400, at *4 (M.D.
La. Oct. 2, 2013) order clarified on other grounds, CIV.A. 13-437-JJB, 2014 WL 1057218
(M.D. La. Mar. 19, 2014).
Defendant argues that Plaintiff has failed to establish the second element - that there was
“an official policy.”4 (Doc. 33-2, p. 8). An “official policy” is:
1. A policy statement, ordinance, regulation, or decision that
is officially adopted and promulgated by the municipality’s
lawmaking officers or by an official to whom the
lawmakers have delegated policy-making authority; or
2. A persistent, widespread practice of city officials or
employees, which, although not authorized by officially
adopted and promulgated policy, is so common and well
settled as to constitute a custom that fairly represents
municipal policy. Actual or constructive knowledge of such
custom must be attributable to the governing body of the
municipality or to an official to whom that body had
delegated policy-making authority.
Norton, 2013 WL 5519400 at *4 (citing Webster v. City of Houston, 735 F.2d 838, 841 (5th
Cir.1984)).
Defendant claims that Plaintiff has not alleged “that Sheriff Ard adopted and promulgated
an official policy statement, ordinance, regulation, or decision regarding medical care of
supervision at the detention center that caused the constitutional violations alleged that would be
sufficient to satisfy the first type of ‘[official] policy[.]’ ” (Doc. 33-2, p. 8-9). Defendant further
asserts that Plaintiff has not “alleged any facts to support a finding that a widespread practice or
custom caused a constitutional violation.” (Doc. 33-2, p. 9).
Plaintiff does not directly counter Defendant’s arguments. Rather, Plaintiff argues
somewhat broadly that he “meticulous[ly] alleged facts related to his original injury and to his

4

Defendant does not address the first or third elements. Thus, the Court limits its analysis to the second element.

7

failure to received adequate medical care, and alleged items specific enough to give rise to a
specific claim for damages.” (Doc. 37, p. 4). The Court is not persuaded.
Norton was a similar suit against the Livingston Parish Sheriff, and the plaintiffs there
made numerous allegations similar to the case at bar. See Norton, 2013 WL 5519400 at *4-5.
After reviewing the plaintiffs’ allegations, this Court explained:
Plaintiffs fail to provide factual allegations regarding any “official
policy” which would potentially subject Defendant Ard, in his
official capacity, to liability under 42 U.S.C. § 1983. An “official
policy” can either be an officially-adopted policy statement,
ordinance, regulation or decision; or a widespread practice that is
so common as to constitute a custom…. However, Plaintiffs
provide the conclusory allegation that Defendant Ard, in his
official capacity, “showed deliberate indifference, in [his]
implementation of policies and procedures regarding the treatment
of ... Darrin Norton and deprived Darrin Norton minimal civilized
measures of life's necessities.” (Doc. 15, p. 15, ¶ 75). There are no
factual allegations as to what this alleged policy was or what it
involved. Plaintiffs also aver that “decisions made regarding
policies for the protection of inmate physical safety, and the
medical and psychiatric policies by the Livingston Parish Sheriff,
in his official capacity, ... directly affected Darrin Norton's ability
to be safe from physical abuse, and medical and psychiatric
indifference and abuse.” (Doc. 15, p. 11, ¶ 66). Again, there is no
factual allegation as to what these policies and procedures were,
and whether or not they constituted an “official policy” so as to
hold Defendant Ard liable in his official capacity. Throughout the
rest of the amended complaint, Plaintiffs simply refer to the
“policy” and “custom” at the Livingston Parish Detention Center,
yet, never make a single factual allegation as to what that custom
or policy entailed. Emblematic of the overall problem, Plaintiffs
make the conclusory statement in their amended complaint that
“[t]he policy was so deficient that the policy itself is a repudiation
of constitutional rights and is the moving force of the constitutional
violations to Darrin Norton and resulted in the death of Darrin
Norton” and “[t]he official custom, policy, and procedure related
to hiring or training of these individuals resulted in the death of
Darrin Norton.” (Doc. 15, p. 15–16, ¶¶ 76–77). This is a situation
where Plaintiffs are merely making conclusory allegations that
effectively amount to a formulaic recitation of the elements of their
42 U.S.C. § 1983 cause of action. See Twombly, 550 U.S. at 555.
Id. at *5.
8

Here, similarly, the Court finds that Plaintiff has not provided facts to support his
allegations regarding an “official policy.” Plaintiff alleges that “Sheriff Ard … has tolerated
patterns and practices of intentional actions and inactions, unjustified and unreasonable
misconduct and/or has acted with a deliberate indifference in a pattern so widespread that it may
be considered the unofficial custom or policy of said defendant to engage in the misconduct in
question….” (Doc. 32, pp. 6-7 ¶ III(17)).
There are several problems with this allegation. First, Plaintiff has not alleged any facts to
show an officially adopted policy. Second, Plaintiff has pleaded no facts to support his allegation
that there is an unofficial custom. As in Norton, Plaintiff has not stated what the alleged pattern
or practice entails.
The event in question in this case appears to be the alleged altercation between Plaintiff
and another inmate, allegedly as the result of Defendants Blades and Aguillard’s failure to
provide adequate security, which resulted in a broken jaw. Plaintiff has further claimed that
Defendants Blades and Aguillard refused his request for medical attention.
However, Plaintiff’s factual allegations concerning the altercation and refusal to provide
medical care are not enough to support a claim that Defendant Ard has acted “in a pattern so
widespread that it may be considered the unofficial custom or policy of [Defendant] to engage in
the misconduct in question….” (Doc. 32, pp. 6-7 ¶ III(17)). Plaintiff has not asserted any factual
“pattern” on the part of Defendant Ard; rather, Plaintiff appears to be claiming that the alleged
“misconduct in question,” the altercation and refusal to provide medical care, establish the basis
for such a claim.
The Fifth Circuit has “consistently held ... that ‘[a]llegations of an isolated incident are
not sufficient to show the existence of a custom or policy.’ ” Mathews v. Bowie Cty., Tex., 600 F.

9

App’x. 933, 934 (5th Cir. 2015) (unpublished) (citing Fraire v. City of Arlington, 957 F.2d 1268,
1278 (5th Cir.1992)). This is because “[i]solated violations are not the persistent, often repeated
constant violations that constitute custom and policy.” Fraire, 957 F.2d at 1278 (5th Cir. 1992)
(citing Bennett v. City of Slidell, 728 F.2d 762, 768 n. 3 (5th Cir.1984), cert. denied, 472 U.S.
1016, 105 S.Ct. 3476, 87 L.Ed.2d 612 (1985)). However, “a single decision by a policy maker
may, under certain circumstances, constitute a policy for which [a municipality] may be liable.”
Brown v. Bryan Cty., 219 F.3d 450, 462 (5th Cir. 2000). Even so, the single incident exception
“is a narrow one, and one that [the Fifth Circuit has] been reluctant to expand.” Burge v. St.
Tammany Par., 336 F.3d 363, 373 (5th Cir. 2003).
This Court has previously explained the narrow single incident exception from Brown as
thus:
In Brown, the Fifth Circuit found the single incident exception to
apply when there was an utter failure to train and supervise. Brown
v. Bryan County, Okla., 219 F.3d 450, 462 (5th Cir. 2000). The
Fifth Circuit later stated in Cozzo v. Tangipahoa Parish Council,
279 F.3d 273 (5th Cir. 2002), that the single incident exception
applied in Brown because the county in that case “failed to provide
any training or supervision for a young, inexperienced officer with
a record of recklessness.” Cozzo, 279 F.3d at 288 (internal
quotation marks and citations omitted). The court also noted that
“there is a difference between a complete failure to train as in
[Brown] and a failure to train in one limited area.”
Bibbins v. City of Baton Rouge, 489 F. Supp. 2d 562, 584 (M.D. La. 2007).
Here, Plaintiff’s conclusory allegation that Defendant had an unofficial custom or policy
in place, without factual support, “effectively amount[s] to a formulaic recitation of the elements
of [his] 42 U.S.C. § 1983 cause of action.” See Norton, 2013 WL 5519400 at *5 (citing
Twombly, 550 U.S. at 555). As explained by the Fifth Circuit, “[t]he description of a policy or
custom and its relationship to the underlying constitutional violation … cannot be conclusory; it

10

must contain specific facts.” Spiller v. City of Texas City, Police Dept., 130 F.3d 162, 167 (5th
Cir. 1997) (emphasis added) (citing Fraire v. Arlington, 957 F.2d 1268, 1278 (5th Cir.1992)).
Accordingly, because Plaintiff has made no factual allegations as to what the Defendant’s
policy was, and has made no factual allegations sufficient to show a custom, Plaintiff’s claim
against Defendant Ard in his official capacity must be dismissed. However, as the Court has not
previous ruled on Defendant’s motion to dismiss and the Court finds that an amendment may not
be futile. Thus, Plaintiff is given leave to amend his complaint.
d. Claims Against Defendant Ard in his Individual Capacity
Here, Defendant challenges Plaintiff’s allegations against him in his individual capacity.
Defendant also argues that Plaintiff has only pleaded conclusory allegations with no factual
support. (Doc. 33-2, p. 14-16). Plaintiff, again, does not directly address Defendant’s arguments.
Further, Defendant argues that he is entitled to qualified immunity for claims against him
in his individual capacity. (Doc. 33-2, p. 16). Plaintiff argues that “qualified immunity is an
affirmative defense and should be pled separately,” and that “[i]t will probably take discovery …
to determine the facts alleged concerning qualified immunity.” (Doc. 37, p. 4). Defendant
counters that “qualified immunity claims should occur ‘at the earliest possible state in litigation.’
” (Doc. 38, p. 2) (citing McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir. 2002)).
i. Qualified Immunity
Here, the Court agrees with Defendant. As recently as 2012, the Fifth Circuit has
explained that “qualified immunity should be adjudicated ‘at the earliest possible stage in
litigation,’ but ‘if the issue is not decided until trial the defense goes to the jury which must then
determine the objective legal reasonableness of the officers’ conduct.’ ” Waganfeald v. Gusman,

11

674 F.3d 475, 483-84 (5th Cir. 2012). Thus, unlike Plaintiff’s argument, it is appropriate to
determine qualified immunity on a motion to dismiss.
As this Court has previously explained:
Plaintiffs’ § 1983 claims seeking damages from a defendant in his
individual capacity are subject to the affirmative defense of
qualified immunity. Club Retro, L.L.C. v. Hilton, 568 F.3d 181,
194 (5th Cir.2009). When a defendant … invokes qualified
immunity, the burden shifts to the plaintiff to demonstrate the
inapplicability of the defense. Id. (citing McClendon v. City of
Columbia, 305 F.3d 314, 323 (5th Cir.2002) (en banc)).
To demonstrate this, the Plaintiffs must satisfy a two-part test. Id.
(citation omitted). “First, [they] must claim that the defendants
committed a constitutional violation under current law.” Id.
(citation omitted). “Second, [they] must claim that the defendants'
actions were objectively unreasonable in light of the law that was
clearly established at the time of the actions complained of.” Id.
(citation omitted). Schultea v. Wood, 47 F.3d 1427, 1434 (5th
Cir.1995) (en banc). “When greater detail is required to address the
defense of qualified immunity, the Court may insist that a plaintiff
file a reply pursuant to Federal Rule of Civil Procedure 7(a)
tailored to an answer pleading the defense of qualified immunity.”
Clayton v. Columbia Cas. Co., No. 11845, 2012 WL 2952531, at
*3 (M.D.La. July 19, 2012) (citing Schultea v. Wood, 47 F.3d
1427, 1433–34 (5th Cir.1995) (en banc)).
Bouchereau v. Gautreaux, CV 14-805-JWD-SCR, 2015 WL 5321285, at *4 (M.D. La. Sept. 11,
2015).
ii. Defendant Ard’s Alleged Deprivation of Plaintiff’s Rights
Plaintiff has alleged that Defendant Ard has failed to properly supervise the detention
center, and that he has tolerated a practice of failing to provide adequate medical care.
Additionally, Plaintiff has alleged that Defendant Ard “knew or should have know that
potentially serious consequences could be suffered by [Plaintiff] as a result of ... his failure to
properly train and supervise jail personnel, supervise and timely seek medical care, or develop
adequate policies regarding medical care.” (Doc. 32, p. 7 ¶ 18).
12

This Court has previously explained:
To prevail on a Section 1983 claim, it must be proven that a person
acting under color of state law deprived the plaintiff of a right
secured by the Constitution or the laws of the United States.
American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49 (1999).
Such constitutional violations should be specified by the plaintiff,
and plaintiff is required to file a short and plain statement of his
complaint, a statement that rests on more than conclusions alone.
Schultea v. Wood, 47 F.3d 1427, 1433 (5th Cir.1995). Plaintiff
must also prove that the alleged constitutional or statutory
deprivation was intentional or due to deliberate indifference and
not the result of mere negligence. See Farmer v. Brennan, 511 U.S.
825, 828 (1994). Moreover, in a claim asserted under Section 1983
“[a] plaintiff must establish that the defendant was either
personally involved in the deprivation or that his wrongful actions
were causally connected to the deprivation.” James v. Texas Collin
County, 535 F.3d 365, 373 (5th Cir.2008) (citing Anderson v.
Pasadena Indep. Sch. Dist., 184 F.3d 439, 443 (5th Cir.1999).
Washington v. Louisiana, CIV.A. 11-00334-BAJ, 2013 WL 5460331, at *4-5 (M.D. La. Sept. 30,
2013), appeal dismissed (May 15, 2014) (paragraph break omitted).
Here, after reviewing Plaintiff’s Complaint, the Court finds, similar to above, that
Plaintiff’s allegations against Defendant Ard in his individual capacity have no factual support.
Plaintiff has not alleged that Defendant Ard was personally involved in the altercation and
refusal to provide medical treatment. Rather, Plaintiff specifically alleges that Defendants Blades
and Aguillard were involved.
Further, with respect to any causal connection to the alleged incident, Plaintiff has not
alleged how Defendant Ard was causally connected to the alleged refusal to provide medical
treatment. Nor has Plaintiff alleged any factual basis for his assertion that Defendant Ard failed
to supervise his deputies. Plaintiff broadly asserts that Defendnat Ard is liable, but provides no
factual support for such a claim. Plaintiff’s allegations against Defendant Ard in his individual
capacity “effectively amount[s] to a formulaic recitation of the elements of [his] 42 U.S.C. §
1983 cause of action.” See Norton, 2013 WL 5519400 at *5.
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Accordingly, Plaintiff’s allegations fail to show that Defendant Ard committed a
constitutional violation under current law. Thus, his claims fail the first prong of the two-part
qualified immunity test. As such, the Court need not determine whether Defendant Ard’s actions
were objectively unreasonable. Therefore, Plaintiff’s claims must be dismissed.
However, in Schultea, the Fifth Circuit outlined a two-step process for district courts
when addressing a qualified immunity defense:
First, the district court must insist that a plaintiff suing a public
official under § 1983 file a short and plain statement of his
complaint, a statement that rests on more than conclusions alone.
Second, the court may, in its discretion, insist that a plaintiff file a
reply tailored to an answer pleading the defense of qualified
immunity. Vindicating the immunity doctrine will ordinarily
require such a reply, and a district court's discretion not to do so is
narrow indeed when greater detail might assist....
Schultea, 47 F.3d at 1433-34.
“[T]his two-step process-requiring the plaintiff to file a short and plain statement of his
claim pursuant to Rule 8(a)(2) followed by a more particularized reply pursuant to Rule 7-is the
preferred procedure preceding consideration of a motion to dismiss on grounds of qualified
immunity.” Todd v. Hawk, 72 F.3d 443, 446 (5th Cir. 1995).
Here, as explained above, Plaintiff’s allegations rest on conclusions that recite the
elements of his claim. However, Plaintiff has also argued that “[i]t will probably take discovery
… to determine the facts alleged concerning qualified immunity.” (Doc. 37, p. 4). The Court is
not persuaded.
As this Court has previously explained:
While the Fifth Circuit has acknowledged that a plaintiff is not
required to “plead facts ‘peculiarly within the knowledge of
defendants,’ ” Morgan v. Hubert, No. 08–30388, 2009 WL
1884605, at *5 (5th Cir. July 1, 2009) (unpublished) (quoting
Schultea, 47 F.3d at 1432), it has cautioned that in order to permit
discovery on a plaintiff's claim against a supervisory official, “the
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pleadings must have sufficient precision and factual detail to reveal
that more than guesswork is behind the allegation.” Floyd v. City
of Kenner, No. 08–306378, 2009 WL 3490278, at *6–*9 (5th Cir.
Oct 29, 2009) (unpublished) (citing Schultea, 47 F.3d at 1434)
(distinguishing Morgan and holding that allegations amounting to
nothing more than speculation with respect to a supervisory
official's participation in a constitutional violation did not “fall[ ]
squarely within the kind of case justifying limited discovery....”).
Clayton v. Columbia Cas. Co., CIV.A. 11-845, 2012 WL 2952531, at *7 (M.D. La. July 19,
2012).
Further, the Fifth Circuit has explained:
There has to be more underlying a complaint than a hope that
events happened in a certain way. Instead, in the “short and plain”
claim against a public official, “a plaintiff must at least chart a
factual path to the defeat of the defendant's immunity, free of
conclusion.” Schultea, 47 F.3d at 1430. Once that path has been
charted with something more than conclusory statements, limited
discovery might be allowed to fill in the remaining detail necessary
to comply with Schultea.
Floyd, 351 F. App’x. at 898. See also Clayton, 2012 WL 2952531, at *7; Loupe v. O’Bannon,
CIV.A. 14-00573-BAJ, 2015 WL 2383858, at *4 (M.D. La. May 19, 2015).
Here, as explained above, Plaintiff has failed to chart a factual path with something more
than conclusory statements. See Id. As such, the Court rejects Plaintiff’s argument that discovery
is needed to determine the facts concerning qualified immunity.
Therefore, in accordance with Schultea, and because the Court has not previously granted
Plaintiff leave to amend his complaint, the Court grants Plaintiff leave to amend his complaint
against Defendant Ard in his individual capacity to “file a short and plain statement of his
complaint … that rests on more than conclusions alone.” See Schultea, 47 F.3d at 1433.
IV.

Conclusion
Accordingly, IT IS ORDERED that Defendant’s Motion to Dismiss (Doc. 12) and Re-

Urged Motion to Dismiss (Doc. 33) are GRANTED;
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IT IS FURTHER ORDERED that Plaintiff's § 1983 claims against Defendant Ard are
DISMISSED WITH PREJUDICE to the extent they rely on a theory of respondeat superior;
IT IS FURTHER ORDERED that Plaintiff’s claims against Defendant Ard in his
official and individual capacity are DISMISSED WITHOUT PREJUDICE;
IT IS FURTHER ORDERED that Plaintiff will file within 30 days of this order an
amended complaint, if he can do so, with respect to his § 1983 claims against Defendant Ard in
his official and individual capacity.
IT IS FURTHER ORDERED that, in the event that Plaintiff fails to file an amendment
to his complaint within that time, his claims will be dismissed with prejudice.
Signed in Baton Rouge, Louisiana, on November 2, 2015.

S

JUDGE JOHN W. deGRAVELLES
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

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